STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

The costs of a DUI are increasing. Everybody knows that a DUI charge and conviction can devastate most people financially. MSN Money reports that a typical first time DUI costs around $10,000 after court costs, fees, towing, and increases in insurance, assuming there was no collision at the time of the DUI stop.

So How Did They Arrive at This Figure?

Bail. In order to be released after arrest and after the sobering up, the offender should plan on paying between $150 to $2500 for bail. Note that in Kentucky, after an interview by pretrial services, the offender could be released on their own recognizance or find themselves paying up to $2500 for bail, assuming there were no additional charges besides the DUI.

Insurance. As attorneys and DUI offenders know, a DUI stop can drastically affect the price of auto insurance. Some insurance companies will drop offenders upon learning of the charge – even before a conviction. Yet others will place the convicted offender in the high-risk category and increase their premiums. MSN Money estimates the insurance cost to be $4,500 or more on a national basis. It could take between three to eight years of “clean” driving for premiums to go back to a preferred status. In Kentucky, this attorney is aware of at least one insurance company which does not raise rates for a DUI-1st conviction.

Fines. For a DUI 1 st conviction, the fines and court costs will vary, ranging between $600 to $1,200. In Kentucky, based on the county, the fines and court costs for a DUI 1 st conviction are $718.00.

Alcohol Education and Treatment. Upon conviction, states require alcohol assessment and attendance at an education or treatment program. The costs vary. MSN estimates the costs to range from $150 to $2000.

Legal Fees. Then there are the legal fees to consider. MSN Money reports attorney fees ranging from $250.00 to enter a guilty plea, up to $25,000 for a complex and rigorous defense. Note that this does not include investigators to review witness and any other case related expenses.

Detention Center / Jail Fees. In Kentucky, plan on spending additional money for booking fees. Additionally, some Kentucky jails charge a per day fee. If you are lucky enought to be granted home incarceration to serve your time, then plan for additional monitoring fees.

Ignition Locks. In some states, a court may order the installation of an ignition lock to prevent convicted offenders from driving if intoxicated. According to MSN Money, these costs can cost between $75 to $1290 / month, plus an installation fee.

License Reinstatement Fee. According to MSN Money, this fee averages $75.00. In Kentucky, this fee is $40.00.

Blood Testing. In Kentucky, prior to providing evidence for the state in the form of your blood, breath or urine, you have the option of selecting to later have a blood test, which must be paid for at the time of the test. The test costs around $400.

Towing. If the officer choses to have your vehicle towed, it could cost the offender between $100 to $1,200 to reclaim their vehicle. Apparently Chicago charges $1,200 to tow the vehicle.

Intangible Expenses. Then there are the intangible expenses to consider:

While the states contend that the science behind Breath Alcohol Testing is reliable, researchers are finding flaws with the science upon which Breath Alcohol Testing is based.

Lung physiology researcher Dr. Michael P. Hlastala, Ph.D. Professor of Physiology, Biophysics and of Medicine Pulmonary and Critical Care Medicine of the University of Washington tested the consistency of measurements from breath alcohol concentration (BrAC) testing machines and compared them to measurements of blood alcohol concentration (BAC) measurements. Dr. Hlastala discovered that the results could vary by as much as plus or minus 20%.

In his research, Dr. Hlastala states that:

. . . subjects with larger lung volume may have a lower BrAC than a subjectwith a small lung volume because these subjects do not need toexhale as great a fraction of their vital capacity as subjectswith smaller lung volume to fulfill the minimum volume exhalationrequired before stopping exhalation (usually ~1.5 liters). A personwith smaller lung volume must breathe farther into the exhaledbreath, resulting in a greater BrAC-to-BAC ratio. Michael P. Hlastala, Invited-Editorial on "The Alcohol Breath Test," 93 Journal of Applied Psysiology 405 (2002).

According to this research, breath testing machines based on the "average" person can result in a bias favoring individuals with large lung capacities causing a low BrAC-to-BAC ratio, and against individuals with small lung capacities causing a higher BrAC-to-BAC ratio.

Stated another way, a person legally under the influence with a 0.08 blood alcohol concentration and with large lung capacity may inaccurately measure 0.064 BrAC on a breath alcohol concentration test machine. A person not considered to be under the influence with a 0.067 blood alcohol concentration and with a small lung capacity may inaccurately measure 0.08 BrAC on a breath alcohol concentration test device.

Standard Field Sobriety Tests (SFSTs) do not accurately determine impairment for probable cause to support an arrest for Driving Under the Influence (DUI).

The SFSTs originally researched by the National Highway Traffic Safety Administration (NHTSA) fail to provide a standardized means of objectivity and unscientifically assessing impairment. The SFSTs were originally developed to assist the officer screen a driver for probable cause to arrest the indivudual for drunk driving. Yet frequently the officer gives the SFSTs after deciding that the driver is guilty of DUI.

The effectiveness of the SFSTs has been called into question since they were developed by NHTSA and are therefore "self-serving". In a 1977 study, researchers learned that 47 percent of the subjects that would have been arrested based upon test performance actually had blood-alcohol concentrations less than the legal limit of 0.10 (the legal limit was reduced to 0.08 in 2000). In 1981, the same researchers conducted further "standardized" testing and learned that the the false results dropped to 32 percent: in other words, in this test nearly one out of every three individuals who failed the test were not legally intoxicated.

Subsequent independent scientific researchers have found these Standard Field Sobriety Tests flawed. Many of these same researchers in 1987 observed that the SFSTs determined balance, steadiness, and reaction time but concluded that a connection between these factors and driving ability was not apparent because neither a steady stance nor simple movement time is essential to the safe operation of a motor vehicle. The researchers did concede that the Standard Field Sobriety Tests may show the presence of alcohol, but that they did not necessarily measure driving ability.

Research on the validity and accuracy of the Standard Field Sobriety Tests conducted in 1991 at Clemston University further showed the SFST's yield false results. In this study, 21 sober individuals with a blood alcohol content of .00 were videotaped performing six common Field Sobriety Tests. The videotapes were then shown to 14 officers who were asked to determine if the individuals had too much to drink and drive. The officers were not informed that the individuals on the videotapes were sober. The officers found that 46 percent of the time the individuals were too intoxicated to drive.

Generally officers do not give the Standard Field Sobriety Tests uniformly, and as noted, there is no scientific basis for assuming they are valid. Many officers either administer the wrong tests or improperly instruct the suspect driver on how to perform the tests. A DUI defense attorney can obtain a pretrial suppression ruling to exclude the SFSTs and their alleged indication of impairment due to lack of scientific foundation and improper instructions.

In Kentucky, the observation by a police officer of a person's appearance and behavior is sufficient for the officer to express an opinion about the degree of the defendant's intoxication and the defendant's ability to operate a motor vehicle safely. This may be bad new for DUI defendant's who do not believe the officer actually witnessed them driving under the influence.

The Kentucky DUI statute, KRS 189A.010(1) does not require proof of bad driving, only proof that the operator was under the influence of alcohol and/or any substance which impaired their ability to drive.

I enjoy being a Kentucky lawyer. At times I find myself wondering what surprises are in store for me: either from my clients, witnesses, medical providers, police officers, defendants, or counsel.

For example, as a DUI lawyer at trial, I elicited testimony from a Lexington, Fayette County, Kentucky police officer that he never lost sight of my client - not once - while viewing my client standing on the curb over his right shoulder and at making four progressive left turns around an alley block and maneuvering his cruiser behind the suspect's vehicle. Impossible you say? The jury thought so too: they found my client innocent and returned a verdict of NOT GUILTY of Driving Under the Influence. (Of course, the fact that the evidence showed my client had a broken right foot, could not drive, did not own the car, sat in the passenger seat, and that another person also arrested admitted to driving the vehicle didn't hurt!)

A Legal Nurse Consultant makes a good FACT WITNESS in personal injury and criminal defense cases in order to prepare the jurors for the expert medical witness testimony.

A FACT WITNESS is a person with knowledge about what happened in a
particular case who testifies in the case about what happened or what
the facts are. A Legal Nurse Consultant understands how to read,
interpret, summarize, and simplify the defendant's medical records for
lay people. Accordingly, they are excellent lay witnesses to use after they
have reviewed the defendant's medical records since they can explain in
simple terms the nature of the defendant's health to a jury.

Earlier this year, I had the privilege of being a featured speaker at the National Nurses in Business Association reunion held at Rose Clifford, RN's, Medical Analysis Resources, Inc., educational facility. I spoke on the topic of using a Legal Nurse Consultant in personal injury and criminal defense trials. I was asked why I used Legal Nurse Consultants as FACT WITNESSES at trial. I explained that in my trials in Kentucky, I learned that not all jurors are created equal: they all come from different educational backgrounds. As such, I stated that it was best to present the medical evidence in a form clearly understandable by the judge, the witnesses, the jurors, and the spectators. I do this by using Legal Nurse Consultants to summarize the medical evidence from the medical records and bills before the trial, and then have them present their summary as FACT WITNESSES to the judge and jury.

For example, in a DUI arrest, on occasion a police officer will mistake a person with health problems for an intoxicated person and arrest them for DUI. The health issues may include people with neurological, eye, nervous, inner ear, spinal, leg, knee, foot, and ankle problems. These problems may result in a sober (i.e.: innocent) person being unable to complete the standard field sobriety tests as requested by the officer and subsequently being arrested for DUI. A Legal Nurse Consultant as a FACT WITNESS would be able to testify at trial as to the defendant's medical condition, therefore simplifying the medical evidence for the judge and jury.

Note though, that a Legal Nurse Consultant testifying as a FACT WITNESS, will not be able to render an opinion as an expert witness, unless first qualified as an expert.

BE SEEN, BE HEARD!

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